RANADA DUTTA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THIS appeal is filed by the petitioner/complainant challenging the judgment and order of acquittal passed on 26-09-2006 by learned Judicial Magistrate, 1st Court, Jalpaiguri in C.R. No.216 of 2005 (TR No.2978 of 2005) in a proceeding under Section 138 of the Negotiable Instrument Act. The fact of the present case is that the complainant gave a loan of Rs.30,000/- to the opposite party No.2 against a written document. On several requests/demands for payment of the loan amount the opposite party No.2/accused failed to pay the said loan amount and on 04-04-2005 the O.P. No.2 issued a cheque bearing No.896239 amounting or Rs.30,000/- in favour of the complainant drawn on State Bank of India, Jalpaiguri Branch. The complainant presented the said cheque for encashment to his Banker i.e. U.C.O. Bank of India, Jalpaiguri Branch on 03-05-2005. But the same was returned with a reminder of insufficient fund. Thereafter, the complainant gave a notice to the accused through the lawyer on 14-05-2005 by a registered post with A/D demanding the pay to entire cheque amount within 15 days from the date of receipt of the said notice. The accused received the said demand notice on 18- 05-2005 but failed to pay the entire cheque amount within statutory period of 15 days. Thereafter, the complainant was compelled to file the present case i.e. C.R. 216 of 2005 under Section 138 of N.I. Act against the accused and the learned Magistrate after taking cognizance of the offence issued the summons against the accused who was released on bail and stood for trial. The accused was examined under Section 251 of the Cr.P.C. and pleaded not guilty and claimed to be trial.

(2.) DURING the trial the complainant produced three witnesses including himself i.e. Ranada Dutta (P.W.I), Khagendranath Biswas (P.W.2) and Pranab Sen Roy (P.W.3). In course of trial some documents were marked as Exhibit i.e. postal receipt (Exbt. 1), A/D card (Exbt. 2), deposit slit of U.C.O. Bank (Exbt. 3), memo of objection of U.C.O. Bank (Exbt.4) and cheque bearing No. 896239 (Exbt. 5). The learned Judicial Magistrate after scrutinizing the evidence of the prosecution and after considering the statement of learned Advocates of both sides acquitted the accused/O.P. No.2 from the offence under Section 138 of the N.I. Act.

(3.) MS . Goswami also pointed out that the learned Judicial Magistrate discussed the relevant provision of Section 4 of the Evidence Act on "presumption" by the learned Court and the order of acquittal cannot be altered by this appeal. The present appeal is liable to be dismissed. No one appears on behalf of the O.P. No.2. It appears from the record that the notice was duly been served upon O.P. No.2.